Illegally re-entering the United States is a federal crime. And while there are certain state offenses related to illegal re-entry, the primary criminal enforcement will come from the federal government. This translates to much more severe legal penalties.
If you or a loved one have been charged with immigration-related crimes, it is vital that you hire skilled legal representation. Turn to Carden Dotzler Hammond, PLLC. Our immigration lawyers are ready to assist you.
Understanding the Federal Crime of Illegal Re-Entry
Illegal re-entry should not be confused with unlawful presence, overstaying a visa, or coming into the country initially without proper inspection. Rather, illegal re-entry requires a prior removal proceeding. The following two criteria must be met:
- There was a prior removal or deportation order for the defendant
- The defendant later re-entered the United States without authorization
More specifically, a person who has been removed or deported from the country (or denied entry), who then later re-enters or even attempts to re-enter the country, can be subject to the charge of illegal re-entry. It also applies if the person is later found in the United States.
Understanding State Immigration-Related Offenses
Federal law generally preempts states from enforcing immigration laws directly since the Constitution grants this power exclusively to the federal government. However, states can enforce laws that are related to immigration. For example, states can prohibit:
- Identity fraud
- Some forms of human trafficking
- Employment-related documentation offenses
While some of these state-related crimes are fairly serious, the federal crime of illegal re-entry can have more drastic consequences. Also, state crimes do not replace federal enforcement of immigration laws.
Penalties for Illegal Re-Entry Are More Serious
Under 8 U.S.C. § 1326, the following penalties are possible for illegal re-entry into the United States:
- Up to 2 years in prison for the general offense of re-entry
- Up to 10 years in prison if certain drug crimes and non-aggravated felonies are involved
- Up to 20 years in prison if an aggravated felony is involved
In addition, the defendant will still ultimately be removed from the country and be barred from lawful re-entry. It’s important to understand that removal happens after the defendant serves a sentence for the crime of illegal re-entry.
The Process Behind Re-Entry Prosecutions
Since re-entry is a federal offense, it necessarily involves a different set of officials than state offenses. Federal agents (e.g. ICE or DHS) and federal detention procedures are involved. The defendant will also be subject to federal rules for plea agreements.
The process tends to go this way:
- The initial arrest: Anything from routine traffic stops to ICE sweeps can flag or bring in someone who is not authorized to be in the country. It’s difficult to escape detection in federal databases even for seemingly unrelated arrests.
- Government review: Officials will review the individual’s identity, immigration status, and prior removal or deportation order. Various records, warrants, and even biometric data can help officials figure out whether the person is lawfully present in the country.
- Criminal complaint or indictment: Once the person’s identity is determined, the federal government will file a criminal complaint or seek a grand jury indictment. The defendant is usually charged under 8 U.S.C. § 1326.
- Initial appearance: The defendant then appears before a federal magistrate who will review the person’s identity, charges, right to counsel, and detention issues. Compared to state crimes, the defendant has a high likelihood of being held in the government’s custody pending the outcome of the matter.
- Discovery and evidence review: The defendant’s attorney has the right to review the government’s evidence through discovery. The evidence may include fingerprints, prior removal orders, arrest reports, and much more.
- Development of the legal defense: Many of these cases involve plea deals, but there are also possible defenses such as mistaken identity, invalid prior removal proceedings, and lawful permission to re-enter. Our firm can discuss these in more detail with you.
- Plea negotiations: Since many of these cases can be resolved through plea bargaining, your attorney may be able to negotiate such matters as the sentence or dismissal of additional counts. Compared to state plea negotiations, federal agreements are more formal and subject to guidelines.
- Sentencing and future immigration consequences: If the defendant pleads guilty or is convicted, their sentence will be based on factors like prior removal orders and the commission of other crimes. Ultimately, deportation is likely after the sentence is completed.
How Our Firm Can Help
Federal re-entry prosecution will have substantial effects on your future, likely more so than state-related offenses. But the good news is that you have the right to put forth a compelling legal defense. That’s where our law firm comes in.
We understand the relevant immigration laws and how other offenses may impact the consequences of a conviction. We also know how to fight for the best possible outcome for our clients and effectively negotiate plea deals that can avoid the most serious penalties.
If you or a loved one were arrested for illegal re-entry, connect today with CDH Law to learn more about how we can serve you.